electric competition
pollution prevention

Decision of U.S. EPA Environmental Appeals Board


July 24, 1992

The U.S. EPA Environmental Appeals Board denied an appeals on the spray dryer approval but overturned U.S. EPA Region V's decision of Feb 3, 1992 to arbitrarily add the CCPA to the WTI permit.

The appeals board held that:

"Absent the consent of the permittee, the Region lacks the authority under 40 C.F.R. 270.42 to modify the permit sua sponte to include the Port Authority of Columbiana County, Ohio as a copermittee."

Page 4 of the decision states:

"The Region added the Port Authority's name to the permit on its own initiative because EPA regulations require landowners such as the Port Authority to sign the permit application and to be listed as copermittee along with the facility's operator. In this instance, the Port Authority is the owner of the land on which WTI's hazardous waste incinerator is situated, and WTI is a tenant in possession under a long term lease from the Port Authority. Although the Port Authority does not dispute the Region's reading of the law regarding property owners' permit responsibilities, it nevertheless objects to being added to the permit at this late date, since its ownership of the land and its relationship to WTI were all known to EPA Region V when the permit was issued in 1983, and even as early as 1981 when WTI first applied for the permit. The Port Authority adds that it never applied for a permit and has never joined in the permit application by signing it; in fact, both the Port Authority and the Region agree that EPA has never requested it to execute a permit application or participate in any application proceeding."

"[T]he Board overturned, solely on procedural grounds, the regional office's addition of the Columbiana County Port Authority to the permit as a co-permittee. The Board said that, although the region is completely correct in wanting to add the Port Authority to the permit, the procedural mechanism it used was incorrect. Although the permit remains valid, the Board ordered the regional office to withdraw the modification which added the Port Authority and to use other available mechanisms."